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Torts Module 4
| Question | Answer |
|---|---|
| What are the 6 methods of terminating a contract? | by performance, agreement, as of right, operation of law, frustration, or breach |
| Define discharged | released/ extinguished; occurs when parties have complied with their obligations, or other events have occurred that releases one or both parties from their obligations |
| Define null and void | of no force, validity, or effect |
| Define tender of performance | offering to perform that which the contracted party is obligated to perform under a contract |
| What is the most common way to discharge a contract? | discharge by performance - perform and fulfill the obligations under the contract |
| "Performance must be exactly as specified in the contract and must occur ______________________________" | on the right date, at the right time, and in the right place, failing which that performance is in breach of the contract |
| Define legal tender | Notes (bills) issued by the Bank of Canada and coins issued by the Royal Canadian Mint, subject to certain restrictions |
| Is a cheque legal tender? What if it is certified? | No to both |
| Describe discharge by agreement and state another name for it | There are several methods by which a party or parties can discharge a contract on consent. They can do so by way of waiver, alteration, substituted agreement, accord and satisfaction, and merger |
| Define material alteration | A change in a contract that changes its legal meaning and effect; a change that goes to the heart or purpose of the contract. Renders the original contract discharged and substituted with a new contract. |
| Describe discharge by operation of law | There is federal legislation that discharges or terminates a party’s obligations under a contract in certain circumstances. Once the contract is discharged or terminated, the party cannot be sued under the contract |
| Provide 2 specific examples of discharge by operation of law | The Bankruptcy and Insolvency Act & Ontario Limitations Act, 2002 |
| Who is at fault when a contract is frustrated? | No one is at fault. |
| Describe the facts and decision in Kerrington v Harrison pt 1 (Kerrigan won) | Kerrigan purchased two lots from Harrison, the road that ran along the lake was included as it gave access to the lots, the road collapsed and disappeared into the lake. Kerrigan sued Harrison and won. pt1 |
| Describe the facts and decision in Kerrington v Harrison pt 2 (doctrine) | at ONCA it was decided the lake was crown property and since the road was now a part of the lake, Harrison had no power or obligation to do anything, SCC ruled in favour of Harrison, focusing on doctrine of frustration pt2 |
| Describe the facts and decision in Kerrington v Harrison pt 3 | only that specific road was included in the contract as right of way, when the road ceased to exist through no fault of either party in a situation not contemplated by them, Harrison's obligations to provide Kerrigan a right of way were at an end |
| Define breach of contract | failure, without legal excuse, to perform any promise that forms part of a contract. |
| What are the three types of remedies available for breach of contract | - claim compensation for damages suffered as a result of the breach - declare that the contract has been discharged, thereby releasing the injured party of their obligation - compel the party in breach to perform the obligations |
| Define fundamental breach (will have to compare with breach of condition) | Fundamental breach: the failure to perform a primary obligation under a contract, which has the effect of depriving the other party of substantially the whole benefit of the contract |
| Define breach of condition (will have to compare with fundamental breach) | Breach of condition: condition is essential term of a contract, breach of condition defeats the purpose of the contract |
| What is the most common remedy for breach of contract? | Damages |
| What is the intent of the court when awarding damages as a remedy? | As far as possible, to put the injured party into the position that they would have been had the contract been fully performed or that they was prior to entering into the contract |
| Describe the difference between liquidated and unliquidated damages | Liquidated: damages that are easily determined from a fixed or measurable standard Unliquidated: damages that cannot be fixed by a mathematical or measure calculation but require info from a source outside the contract |
| Describe the concept of “duty to mitigate” in the context of contract law | Injured party doesn't have a duty to mitigate their losses; however, that does not mean that they can remain inactive in the face of the other party’s breach. court will consider what steps the plaintiff has taken to minimize the loss suffered as a result |
| Provide an example of the duty to mitigate | Employment law |
| Define “specific performance” and explain in what circumstances a court is likely to order it. Provide an example. | A remedy requiring the party who is in breach of a contract to perform his or her obligations under the contract. Usually only available when the contract is for the sale of unique goods or real property |
| Define “injunction” and describe the two kinds of injunction | A court order that prohibits someone from doing some act or compels someone to do some act, in order to prevent future harm. Prohibitory injunction & mandatory injunction. |
| In contrast to the purpose of the remedy of damages, what is the purpose of “rescission” as a remedy? | To put the parties in the position they would have been in had the contract never been made |
| Define “unjust enrichment” | Unjust enrichment: the principle that a person should not be permitted to inequitably gain a profit or benefit at the expense of another |
| What is another way to say "quantum merit"? (5 WORDS ONLY) | As much as is deserved |
| Define “substantial performance” and provide an example of a situation in which the courts may apply it | The performance of contractual obligations that does not entirely meet the terms of the contract but nevertheless confers a benefit on a party |
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Kelseym98
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